27 January 2016

Harry Clarke: "insufficient evidence in law to prove a crime committed"

I've written a greal deal about the legal fallout from the tragic crash in Glasgow on the 22nd of December 2014, which claimed six lives. Regular readers may feel I've exhausted my arguments. I probably have.

But I wanted to add a brief word or two here about today's tidings: that the Lord Advocate has declined to extend his concurrence to the two bills of criminal letters which were placed before him, the one emerging from the bin lorry crash, the second from a separate and sorrowful incident in Glasgow, involving the deaths of two young ladies in similar circumstances to the better known 2014 tragedy.

First, a technical point. As I explained here last week, this isn't the end of the story for the Sweeney and McQuade families. The Lord Advocate gets the first look at a bill of criminal letters, but he doesn't have the last word on its success or failing. This is reserved for the High Court of Justiciary, which will now presumably hear argument about why the families have title and interest to take Harry Clarke to law, and a relevant indictment against him, which is supported by sufficient evidence. They will also have to persuade senior judges that there are "exceptional circumstances" to justify departing from the general principle that decisions are taken in the public interest by a politically-independent prosecutor, on the basis of the evidence.

Frank Mulholland will be represented at this hearing, as, presumably, will Harry Clarke. It remains unclear quite how Scotland's senior prosecutor will approach the case. In Carol X, the Lord Advocate of the day felt he couldn't concur with the application for a private prosecution, on the basis that he had sent letters to the two accused, telling them they wouldn't be tried. But Lord Mackay of Clashfern didn't actively oppose Carol X's motion before the High Court in the 1980s. Given his public comments on the case, will Mr Mulholland take the same stance? Can he credibly do so? I have my doubts.

Explaining his decision today, the Crown Office spokesman explained “the original decision not to take criminal proceedings was made on the basis that there was insufficient evidence in law to prove that a crime had been committed and that position remains unchanged.”

There is likely to be a public outcry if the Crown vigorously opposes the family's motion, but if this private prosecution goes ahead, that arguably places the Crown's reputation in the greater jeopardy. Public opinion remains in the grip of an understanding of the case which is sharply at odds with the evidence. And a vengeful mood sells papers. Mulholland cannot ride the populist side of public opinion in this case, and keep his prosecutor's soul. He can now only chose the least worst option, from a cynical, public relations point of view.

The Crown have sometimes struggled to explain their decision in the Harry Clarke case. It is complex. The facts are knotty. The fatal accident inquiry was ongoing. And everyone hates lawyers. I do think these questions of culpability and punishment are nuanced things reasonable people can reasonably disagree about. But there is nothing duller, or more predictable, than the inevitable "lawyers are cold bastards, unlike me with my plain goodhearted ignorance of the actual facts" schtick.

The facts about Harry Clarke's medical condition, what he knew about it, and the very limited consequences of his dishonest, hardly impinge on the public consciousness at all, however much I harp on about them. But there it remains. There is no medical evidence Harry Clarke "ought to have known he was not fit to drive." And even if he had been honest, the evidence shows he would have retained his licence by 2014, after a nominal suspension. These essential have gone unreported in almost every newspaper and broadcaster's bulletin. Perceptions of reality have been shaped accordingly.

This is one of those predicaments where the Crown Office cannot win. They can only do the right thing in the teeth of public opinion. In declining to prosecute Harry Clarke for death by dangerous driving, or homicide, it seems to me that they've only followed the evidence, and done their duty.

1 comment
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No intended prosecution, said the Crown. Glad to see consistency. Not getting prosecuted is the cornerstone of many an investigation. Witnesses have the habit of clamming-up if they think their testimony will be used against them!

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